Clyde DeWitt's Legalese column runs monthly in AVN magazine. To see the March edition, click here.
Donald Trump won the election, and the current administration has a new attorney general who is in charge of the Department of Justice and the FBI. That’s Jeff Sessions, who has committed himself to re-energizing the department’s obscenity-prosecution machine.
Understand some background about this. President Reagan figured out in his 1984 reelection campaign that evangelicals (then the “Religious Right”) presented a huge source of support. He paid them back with the Meese Commission and the misery of the obscenity prosecutions of the late 1980s and early 1990s.
The George W. Bush Administration was determined to restart what the administrations of Reagan and his father had started, but it was sidetracked by some airplanes flying into buildings on 9/11. There were a few obscenity prosecutions and a couple of dozen 2257 inspections, but then the Republicans were ousted.
Now, with Sessions in charge of the Department of Justice, it’s reasonable to figure the Trump crew will reinstate what the last three Republican administrations had going. So, how should your company respond to this?
First, the easy part: 2257 inspections. This is a cookbook. Your company should have a protocol for responding to an inspection. You also need to be sure that your ducks are in a row. So, how do you do that?
As this column has repeatedly advocated, “Don’t fill your own teeth.” Of the hundreds of thousands of attorneys in the United States, there are only a handful of them who fully understand 2257. You should have an attorney both review your 2257 record-keeping habits and write a protocol for responding to an inspection. Failure to do either could land you in federal prison.
You should know also that although the judge in Free Speech Coalition’s lawsuit against 2257 threw out the government’s power to search companies’ records without a warrant and without notice, that protection only applies to Free Speech Coalition members and companies based in the Third District: Pennsylvania, New Jersey and Delaware.
Now, let’s look at the other problem: obscenity prosecutions. If your company is targeted for one of these, your life as you knew it will be over. Whether you become a target likely will be a function of two things: First, your content. If you have content that includes women having sex with animals, figure that you will be viewed as low-hanging fruit.
But there’s more. For example, the cry of your enemies is that porn exploits women. So content that portrays women as sex objects can be a target. A scene is less offensive to that element if the female is the one who initiates the sex and clearly enjoys it.
The other point is the community standards thing and juries. During the spate of prosecutions during the Reagan-Bush-I era, most of the prosecutions were in places where the jurors were more likely to be evangelicals: Oklahoma City, Tallahassee, Memphis, Dallas, and so on. Your company is probably not in any of those places; but the DOJ is everywhere. Accordingly, you need to evaluate how your content plays in those places. And a good way to do that is to speak with an attorney who is conversant with obscenity prosecutions.
Having said that, know that no attorney will give you an opinion about whether given content is obscene. However, one who is familiar with obscenity prosecutions can give you an idea of the level of risk. Face it: If you are a target of prosecution, unless you are a huge company, you will be bankrupted by a federal obscenity charge.
Second easy part: What if they show up with a search warrant?
To be prepared for this, you need to know about how the DOJ and the FBI go about things.
Federal criminal obscenity investigations historically have started with “undercover buys.” In the Reagan-Bush-I spate of prosecutions, undercover agents ordered videotapes from very conservative places. For example, in one case during that era, one of the prosecutions that arose from Minneapolis, they ordered one video from Duluth so that the case could be brought there to draw a more conservative jury.
Understand that a search warrant is an order from a judge to search a particular place and seize identified items. You can’t fight this. But you can prepare yourself.
The search warrant will order seizure of particular content. You don’t want to give them any additional information. Accordingly, keep your computerized information broken down. Also, know that they may seize your server; so have cloud backup. Remember, these clowns are out to do everything that they can to make you miserable. Prepare for that.
The other thing that you need to know is to keep your mouth zipped. The first and only thing that should come out of it: “I want to call my attorney.” And you need to have an attorney to call. They will ask you questions. Don’t answer anything except to confirm your identity. Show them your driver’s license.
What happens after the search and seizure is covered in next month’s column.
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.
